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Cybersecurity, process reform at the Federal Communications Commission, privacy and spectrum policy issues will dominate the technology agenda for the House Energy and Commerce Committee this fall.

“The American public is desperate for more jobs, and Energy and Commerce Republicans understand the fundamental economic principle that reducing regulatory burdens is imperative to spur job growth and economic recovery,” said Chairman Fred Upton in a statement accompanying the fall agenda.

The FCC’s “Third Way” rhetoric is especially interesting to ITIF because the notion that a third way was needed is something ITIF president Rob Atkinson and current Obama advisor Phil Weiser introduced in a 2006 paper. The rhetoric of the third way doesn’t align with the use of a Title II classification, however, because Section 202 has the simplistic “anti-discrimination” construction that’s telephone-specific. Packet-switched networks employ discrimination to do constructive things, so the policy issues are around the sale and transparency of discrimination as a service, not the mere fact of its existence.

The FCC is also usurping the Congressional role and defining its own mandate. See the ITIF statement:

The Federal Communications Commission, the government agency charged by Congress with regulating communications by air and wire, announced today a sweeping new program that goes far beyond its mandate. The FCC’s move is likely to lead to a lengthy and unnecessary legal battle, create needless uncertainty in the market, and detract from the FCC’s important work in implementing the recently unveiled national Broadband Plan. While the FCC is attempting to create a regulatory framework suitable for the ever changing Internet ecosystem, its proposal is tantamount to going duck hunting with a cannon.

This is a story that has become all too familiar. In the recent past, the courts have struck down punitive FCC orders against the Super Bowl “wardrobe malfunction” and on, April 6, an overwrought ruling against cable operator Comcast, who sought to preserve good Internet performance for those of its customers who use Voice over Internet Protocol (VoIP) services such as Skype and Vonage. This most recent example of FCC over-reach is a proposal that would take broadband Internet services out of their present status as lightly-regulated “information services” (Title I) and plunk them into a regulatory system devised for the monopoly telephone networks of the 1930s (Title II).

News leaked out earlier today to the effect that the FCC has decided to pursue a Title II regulatory program for the Internet, treating it in effect as if it were a telephone network. Others have called this approach “the nuclear option,” but I think it’s less severe, more like the 9/11 attacks on New York and Washington. Telecom lawyers will prosper from it, as a move of this kind is likely to take many years of court battles to squelch. Here’s a little discussion I had with a small circle of friends at the TechCrunch pad this afternoon.

I gave a presentation at eComm last week on the challenges in building a mobile Internet building on themes I explored in my recent ITIF report, Going Mobile. As I didn’t have much time, I skipped over some of the policy content, so I’m uploading my slides for interested parties to peruse.

I went to the FTC’s second privacy workshop yesterday in Berkeley, and found it a generally interesting and worthwhile event, although it did exhibit some of the familiar patterns. Privacy, like net neutrality, isn’t as much a coherent issue as a grab-bag of grievances about a number of loosely connected concerns. Privacy is even more diverse and more incoherent than NN, which is after all driven by the desire to preserve traditional features of the Internet. Privacy seeks to change Internet tradition, which has never had any meaningful privacy but has simply created a sufficiently strong illusion of anonymity to make some people think there’s privacy on the net.

So what you have in privacy is two major issues of totally different character: (1) the capture of fleeting personal information by various services; and (2) the building of databases of personal activity and the subsequent analysis, use, and sale of the information they contain. These issues have to be resolved against the background of the Internet’s defective security architecture and tradition of people using handles instead of real names. When people feel anonymous, they misbehave, which is why there’s no much theft and generally churlish behavior on the net.

Congress is looking into these issues as well, and toward that end has held several hearings. I’m attaching testimony I delivered at one of these last Spring for your enjoyment. It holds up pretty well.

I asked the net neutrality question toward the end, and applauded the Chairman for the way he’s transformed the FCC. Genachowski brought some of his best staffers with him, and it was nice to meet and greet and share ideas. You have to admire anyone who can make such deep changes to a rather hidebound federal agency as quickly as Genachowski and staff have done.

Mr. Levin also dismissed criticisms last week from public interest groups unhappy the plan may not propose some ideas for encouraging competition, such as rules that would require Internet providers to share their lines with competitors.

“I find their criticism not very productive,” Mr. Levin said Monday.

FCC officials have been considering the ideas, some of which were laid out in a FCC-commissioned report by Harvard University’s Berkman Center for Internet & Society.

The report suggests that other countries have faster, cheaper broadband because they adopted open access, line-sharing rules years ago. But FCC officials appear to have backed away from the open access idea in recent weeks.

“The Berkman (study) did a fantastic job of pointing out what’s going on around the world,” Mr. Levin said. “There are certain things where what’s going on in other countries really isn’t germane for where we go from here.

The video of the FCC workshop on Speech, Democratic Engagement, and the Open Internet is up on the FCC’s web site already. I can’t say there was much enlightening dialog in this event; it was pretty much the same tired old rhetoric we’ve heard for the last four years on the subject, with some exceptions.

One speaker, Bob Corn-Revere, was very good, quite clear about the potential dangers of the proposed anti-discrimination rule, and another, Glenn Reynolds, briefly mentioned reservations about them but didn’t amplify. Another speaker denounced volume-based pricing as a racist practice, and several others displayed astonishing ignorance about the nature of information bottlenecks on the Internet by way of proposing different rules for sites like YouTube and search services than those that would apply to ISPs. The reality is that people don’t stream video from their home computers today because of capacity limits, so any attempt to free video streams from content-based restrictions has to start with the services that people use to locate and host these streams.

So the workshop was pretty much a waste of time unless you just awoke from a five year long coma. Not that the FCC meant for it to be, of course, just that there wasn’t much there. And to make matters worse, the written testimony is not available from the FCC, but thanks to PFF you can see Bob Corn-Revere’s statement here.

“Interesting” in that most of* this group shares a common viewpoint to the effect that net neutrality regulations are necessary to protect free speech on the Internet. This is not the only viewpoint that exists on the subject, of course: there are many of us who believe that the proposed framework of regulations is at best neutral to free expression and under many plausible outcomes, positively harmful.

The reason for this is that the proposed anti-discrimination rule makes it illegal for ISPs to sell enhanced transport to publishers who require it to deliver high bandwidth, live interactive services to people on the Internet. A broad non-discrimination rule pretty well confines the future Internet to the range of applications it supports today, low-bandwidth interaction and static content, and even those are in doubt on wireless access networks with limited bandwidth.

The Genachowski FCC has been very good so far on putting panels together with diverse viewpoints, so the stark failure of the Commission to respect viewpoint diversity in this particular case is rather surprising. It is particularly ironic that on a panel devoted to viewpoint diversity, in essence, that the Commission has chosen viewpoints that represent unanimity rather than diversity.

UPDATE: One thing I have to say about the FCC is that it’s a very responsive agency. I sent an e-mail to the panel coordinator late Friday complaining about the panel’s lack of diversity, and despite the fact that it was sent after business hours on Friday, I got a response today in the form of a phone call from an FCC staffer. The explanation they offer is that this panel is simply meant to cover Internet openness, and there will be additional panels on the issues I’ve raised from January to March. So the issue of whether new rules are needed to protect free speech will be covered in these future panels, and doesn’t need any discussion right now, per the FCC’s viewpoint.

The scheduling is hard to fathom. Earlier this week, there was a technical panel in which academics, operators, and equipment vendors with different viewpoints on net neutrality regulations educated Commission staff on Internet organization and traffic. That panel had people who range all the way from strong supporters of the regulations to strong opponents, but they didn’t explore the policy space directly. The upcoming panel simply happens to be more uniform in its views, but their charter is to explain how they benefit from Internet openness.

In the overall scheme of things, the Internet is not actually more open than many other networks with which we’re familiar, of course; the telephone network permits anyone to communicate with anyone, as did the telegraph network and as does the US mail. And you can’t do anything you want on the Internet, you have to abide by the law.

To the extent that the Internet is not open, it’s chiefly government that closes off particular avenues of expression: The obvious examples are the DMCA’s anti-piracy provisions, the US ban on kiddie porn, Germany’s ban on Nazi organizing and Scientology, and China’s ban on access to native Google searches. Each government has decided on policy grounds to close the Internet in ways that suit its interests, so if the regulations simply focus on commercial restrictions and enablements of forms of Internet-based speech and don’t restrict the power of the FCC to issue ex post and ex ante regulations, we won’t have accomplished much in this process.

The area of controversy is in between the technical issues discussed in the first workshop and the openness issues that will be discussed Tuesday. And as we will see, the advocates of net neutrality don’t understand enough about the Internet’s operation and potential to have much insight into whether and how it’s going to be regulated going forward.

*UPDATE 2: At least one of the speakers will in fact caution the Commission about diving in with the new regulations without clear evidence of harm.

I’ve been spending some time in Europe recently. A couple of weeks ago I took part in a roundtable at the Karlsruhe Inst. of Technology in Germany on open spectrum that combined one of most interesting gatherings of people of different viewpoints and ranges of expertise ever assembled in one setting. The group included a former chief national regulator, the technologist who wrote the first IEEE 802 standard for beam-forming, a very serious grad student working with Software-Defined Radios, as well as a number of legal academics and economists. Together we explored the obstacles and value of the wireless third pipe, including the research problems that will need to be solved to make it a reality. This is the kind of gathering that’s rarely assembled in the USA.

And more recently, I took part in a series of presentations and a general discussion about openness on the wireless Internet. One of the other presenters was one of the Pirate Party’s Members of the European Parliament, and others were the top strategic thinkers and managers from TeliaSonera and Huchison Whampoa Europe. This event followed on the passage of the EU Telecoms Package that wisely added a disclosure rule to the European Common Law and just as wisely refrained from adding an anti-discrimination rule. Did you know that Huchison offers a 3G-only phone with Skype pre-installed? They do, and it took them a lot of work to get Skype to run successfully on it.

A year ago, I would have said that Europe was trailing the US on the regulatory front, but today it certainly appears they’re on a more sensible course than we are in many respects. It’s important for a regulator to be humble and not approach his task with too much enthusiasm and creativity. These are fine traits in an entrepreneur, but in the hands of government can lead to grief. It’s best that we each remember our respective roles, in other words. It’s in the nature of technology to change, and regulations that are too prescriptive alter the natural order of things.